Cook v. State Highway Board , 162 Ga. 84 ( 1926 )

Hines, J.

(After stating the foregoing facts.)

On the hearing of the application for a temporary injunction the case was submitted to the judge upon the petition, answers, and an agreed statement of facts. The petition and answers were duly verified. In the answers the material allegations contained in the petition in the suit filed by plaintiffs in Telfair superior court, and in the petition in the present case, were denied. In these circumstances the trial judge was authorized to find that Cook and Wilcox had no such cause of action as they seek to assert in their suit in Telfair superior court, and no such cause of action as they undertake to enforce in the present suit. Under the familiar rule that this court will not reverse a refusal of a temporary injunction, where the facts are conflicting, unless the chancellor’s discretion is abused, which we do not find, we could affirm the judgment below and leave the case there; but as important questions of law are raised in the record, and will be involved in the final disposition of the case, we shall proceed to examine and pass upon them.

Where the State highway board instituted a proceeding to condemn lands of the plaintiffs for the purpose of laying out and building a public road thereon and a free public bridge across a navigable river, and where the plaintiffs had previously instituted a suit against the counties which will be connected by such bridge, to recover damages for taking and appropriating a right of way over their said lands for the same purposes, such condemnation proceeding is no bar to the action for damages, and the action for damages is not ground for arresting the condemnation proceeding. Georgia R. &c. Co. v. Gardner, 118 Ga. 723 (45 S. E. 600); Railroad Commission v. Southern Railway Co., 154 Ga. 297, 309 (114 S. E. 335). The pendency of a former suit is not a good cause of abatement, unless it is for the same cause of action, and is between the same parties. Civil Code (1910), § 5678. From the above it follows that the pendency of the action for damages brought by the plaintiffs in Telfair superior court against the Counties of Telfair and Jeff Davis, for the wrongful taking and appropriation of a right of way over their lands for a public road and for a free public bridge, does not prevent the subsequent proceeding brought by the State highway board to condemn their land for the same purposes.

The main and controlling question in this case is, whether the State acted for itself or whether it acted for the Counties of Jeff Davis and Telfair, in bringing the condemnation proceeding sought to be enjoined by the plaintiffs in this case. It is earnestly insisted by counsel for the plaintiffs that this proceeding was brought in behalf of the counties and not in behalf of the State. It is expressly denied by the defendants in their sworn answers that this proceeding was instituted by the State highway board in behalf of the counties. They expressly assert that it was brought in behalf of the State. But counsel for plaintiffs insist that, notwithstanding this denial, as a matter of law this proceeding is one in behalf of the counties, and not one in behalf of the State. This brings us to determine whether, under the law, this proceeding was brought in behalf of these counties. It does not purport to be so brought. Does the law malee it a proceeding for and in behalf of these counties? The argument in favor of an affirmative answer to this question is based upon the provisions of law which we will now notice. The road authorities of the respective counties are required to furnish free to the State highway board all necessary rights of way for the designated roads in each county, constituting any portion of the system of State-aid roads. Acts 1919, p. 251; 8 Park’s Code Supp. 1922, § 828 (uuu). No road shall become a part of said system of State-aid roads until the same shall be so designated .by the State highway board by written notice to the county road authorities concerned. Acts 1919, p. 247; 8 Park’s Code Supp. 1922, § 828(ooo). When any portion of a State-aid road is thus taken under the jurisdiction of "the State highway department, the county or counties in which said portion is located shall not thereafter be required to levy taxes for the construction or maintenance of said portion, or to use any of its funds or road forces in the construction or maintenance thereof. Acts 1919, p.-248; Acts 1921, p. 199; 8 Park’s Code Supp. 1922, 828 (ppp), prov. 5. It is not a fair deduction from the above provisions of the law that this proceeding is brought in behalf of the counties. The fact that the proper county authorities are required to furnish rights of way, free to the State highway board, does not prevent that board from condemning rights of way for State-aid roads whenever the county authorities fail or refuse to furnish said rights of way. This provision may make the counties liable for expenditures incurred by the State highway board in acquiring these rights of way; but it does not bar this board from proceeding to condemn rights of way. The provision that no road or portion thereof shall become a part of the system of State-aid roads until so designated by the State highway board did not prevent that board from instituting this condemnation proceeding. On the contrary, the acts creating the State highway board, and amendatory thereof, authorized this proceeding.

A system of State-aid roads “for the purpose of interconnecting the several county-seats of the State” has been created. These roads “shall be designated, constructed, improved, and maintained by the State, under the State highway department.” Acts 1919, p. 247; 8 Park’s Code Supp. 1922, § 828 (kkk). The State highway board is empowered and required “to designate, improve, supervise, construct, and maintain a system of State-aid roads, provided that no road shall become a part of said system until the same shall be so' designated by the State highway board by written notice to the county road authorities concerned.” Said board is empowered and required “to provide for surveys, maps, specifications, and other things necessary in designating, supervising, locating, improving, constructing, or maintaining said State-aid roads, or such other public roads as may be provided” under the above act. Acts 1919, p. 247; 8 Park’s Code Supp. 1922, § 828(ooo). “The State highway board shall have authority to plan and eonstruct, improve, and maintain said State-aid roads in any manner they may deem expedient, by free labor, by contracts, or by any other method or combination of methods, in their discretion. In so £oing said highway board is hereby authorized and empowered to condemn and acquire a right of way not exceeding 100 feet in width for maintaining, improving, and constructing said State-aid roads.” Acts 1919, p. 250; 8 Park’s Code Supp. 1922, § 828 (sss). “The State highway board, acting for-and in behalf of the State, is hereby authorized and empowered to exercise the right of eminent domain in the condemnation of rights of way and projDerty thereon for the use of the system of State highways, where the county fails to furnish such right of way, and nothing herein contained shall interfere with the lawful right of counties to condemn for road purposes, even though such condemnation shall be for the establishment of a portion of the system of State-aid roads.” Acts 1919, p. 252; 8 Park’s Code Supp. 1922, § 828(bbbb). Under these provisions of law for a system of State-aid roads, the highway board is authorized to “construct and maintain these roads.” That board has the right “to exercise the right of eminent domain in the condemnation of rights of way and property thereon for the use of the system of State highways, where the county fails to furnish such right of way.” In constructing, improving, and maintaining said State-aid roads the highway board is “authorized and empowered to condemn and acquire a right of way not exceeding 100 feet in width.” Thus we have a full and complete State method of laying out, constructing, and maintaining State-aid roads. The State highway board is given full authority and power to condemn rights of way for these roads. Under these provisions of law, it can not be said that the condemnation proceeding in this case was brought for and in behalf of the county and not in behalf of the State. Thus one of the main contentions of the plaintiffs is without merit.

It follows, from the principle announced in the foregoing division of this opinion, that the contention of counsel for plaintiffs that this condemnation proceeding could only be brought under the Civil Code, § 640 et seq., and not under the act of 1914, is not well taken. When the county road authorities seek to lay out a new public road, they must pursue the method laid down in the Civil Code, § 640 et seq. Whenever a public road is already established, and it becomes necessary to condemn land for the purpose of grading, improving, turnpiking, paving, widening, or macadamizing the same, for the use and convenience of the public, the county authorities must pursue the method laid down in the Civil Code, § 5243. But when the State highway department wishes to condemn land for rights of way for State-aid roads, it is not required to, and can not, pursue either of the above methods. Lee County v. Smithville, 154 Ga. 550 (3) (115 S. E. 107). In Mitchell County v. Hudspeth, 151 Ga. 767 (108 S. E. 305), “the county authorities on each side of the stream joined in proceedings to condemn a certain amount of plaintiff’s land under the Civil Code (1910), § 5206 et seq., for the purpose of building a public free bridge across the river, and laying out public roads on each side thereof as approaches thereto.” In that case this court held that as there was no compliance with § 640 et seq. of the Civil Code of 1910, the plaintiff was entitled to an injunction enjoining the counties from proceeding with the condemnation proceeding. In that case the condemnation proceeding was brought by the counties. In this case the proceeding was brought by the State highway board in behalf of the State.

The condemnation proceeding in this case was brought under the act of 1914. Acts 1914, p. 92; 4 Park’s Code, §§ 5246(a), 5246 (i). It is insisted by counsel for the plaintiffs that, if this act of 1914 applies to a case where the State highway board is undertaking to condemn a right of way for a State-aid road, the facts of the present case do not bring it within the purview of that act. The first section of that act is as follows: “Whenever the State of Georgia or the United States shall desire to take or damage private property in pursuance of any law so authorizing, and shall find or believe that the title of the apparent or presumptive owner of such property is defective, doubtful, incomplete, or in controversy; or that there are or may be persons unknown or nonresident who have or may have some claim or demand thereon, or some actual or contingent interest or estate therein; or that there are minors or persons under disability who are or may be interested therein; or that there are taxes due or that should be paid thereon; or shall, for any reason, conclude that it is desirable to have a judicial ascertainment of any question connected with the matter; such government may, through any authorized representative, either in term time or vacation, petition the superior court of the county having jurisdiction, for a judgment in rem against said property, condemning the same to the use of the petitioner upon payment of just and adequate compensation therefor to the person or persons entitled to such payment.” Acts 1914, p. 92; 4 Park’s Code, § 5246 (a). This State, under this statute, can bring thereunder a condemnation proceeding when it “shall, for any reason, conclude that it is desirable to have a judicial ascertainment of any question connected with the matter;” and “may, through any authorized representative, . . petition the superior court of the county having jurisdiction for a judgment in rem against” the property sought to be condemned, “condemning the same to the use of” the State “upon payment of just . . compensation therefor.” This language is exceedingly broad. It authorizes the proceeding in this case, under the facts thereof.

The next contention of the plaintiffs is that they are entitled to recover damages for their lands lying on both sides of the river, and that they can not recover all these damages under the condemnation proceeding instituted by the State highway board in Jeff Davis superior court. The act of 1914 provides that the proceeding shall be brought in the superior court of the county having jurisdiction. In condemnation cases the venue is in the county in which the land lies. If a single tract of land sought to be condemned lies in two counties, the condemnation proceedings may be had in either. It would be impracticable to have two condemnations where a right of way over an entire tract of land is sought to be taken. In such a case the tract of land is a unit, and its value can be more accurately arrived at by condemning it as a unit. 10 R. C. L. 206, § 176. So this court held that where land sought to be condemned under the Civil Code (1910), § 5206 et seq., is partly located in two counties, the proceeding could be had in either county. Whitney v. Central Georgia Power Co., 134 Ga. 213 (67 S. E. 197, 19 Ann. Cas. 982). While in that case this court was dealing with a different statute, the principle therein announced is equally applicable when the proceeding is had under the act of 1914. So in this case, if the proceeding had been brought in Jeff Davis superior court to condemn a tract of land of the plaintiffs, lying on both sides of the river, the proceeding could have been properly brought in the superior court of Jeff Davis County. But in this case the proceeding was not brought to condemn a right of way over a tract of land lying on both sides of the river. It was brought to condemn a right of way over a tract lying on one side of the river. It was a proceeding in rem, and not in personam. Its purpose was to condemn a right of way over this tract of land for a public road and approaches to a bridge to be constructed by this board over the Ocmulgee river. Of course the highway board could not condemn a right of way over their lands on the opposite side of the river under this proceeding, and would not be entitled to such right of way by any judgment of condemnation obtained therein. Before they could acquire such right of way, they would have to acquire the same by purchase or by condemnation proceeding. The fact that the board did not have such right of way, and had not taken steps to condemn a right of way over the lands of the plaintiffs on the opposite bank of the stream, would in no way prevent it from prosecuting the present condemnation proceedings in Jeff Davis superior court. The fact that plaintiffs would be entitled to damages, if the board condemned their land on the opposite side of the river, would in no way preclude it from pressing the present condemnation proceeding.

The plaintiffs next insist that in this condemnation proceeding the highway board is seeking to condemn a right of way over two tracts of land, one owned by Cook and the other owned by Cook and Wilcox, and that this can not be done in one proceeding. It must be borne in mind that while this proceeding was brought to condemn a right of way across two tracts of land, it was brought to condemn lands alleged to belong to Cook alone. It is alleged that the two tracts are the property of Cook. While the tracts are thus alleged to belong to Cook, the proceeding was one in rem, and sought a judgment in rem condemning a right of way over these two tracts of .land. We see no good reason why, if the proceeding had been one in personam, the board could not proceed to condemn a right of way over two tracts of land belonging to the same person. So when the proceeding is in rem, we see no valid reason why it can not proceed against two tracts of land. The very purpose of the proceeding in rem is to bind all parties who may have any interest in the res. If in such proceeding two tracts are alleged to belong to one individual, but it develops that one tract belongs to such individual, and the other tract belongs to such individual and another jointly, this situation would not bar the proceeding. For instance, if the board desired to condemn a right of way over various land lots alleged to be the property of an individual, we see no reason why such right of way could not be condemned in a single proceeding. The board would not be required to proceed- against each land lot. So, if it should develop, in the proceeding to condemn a right of way over designated land lots alleged to be owned by a single individual, that such individual and another owned jointly one of the land lots, this fact would not render the proceeding void, and would not bar the board from proceeding with the condemnation proceeding. The purpose of the proceeding in rem is to condemn the rights of all persons interested therein. In such a proceeding all persons interested will be awarded the damages to which they are respectively entitled. While this point is discussed in the brief of counsel for plaintiffs in error, we do not find that it is raised in any of the assignments of error in the judgment of the court below; and this furnishes a reason why the judgment should not be reversed.

We do not find that there is merit in any of the other assignments of error in this case.

Judgment affirmed.

All the Justices concur.